Employees are protected from unfair dismissal where an employee is dismissed from their employment with no reasonable grounds.
An unfair dismissal application is normally lodged with the Fair Work Commission of Australia. The Fair Work Commission reviews the grounds of each dismissal and considers whether there are reasonable grounds or not.
Unfair dismissal applies to employees of an employer. However, this does not exclude contractors from applying for unfair dismissal, as some contractors may be deemed as ‘employees’.
What makes a dismissal unfair
In order for a dismissal to be unjust:
- The employee must be dismissed from their employment (an employment, either oral or written) must exist;
- The dismissal must be either harsh, unjust or unreasonable;
- The dismissal must not be a genuine redundancy; and
- If the employer is considered to be a small business, the employer must comply with the Dismissal Code Of Small Businesses.
Moreover, in order for an employee to apply for unjust dismissal, they must also meet the following requirements:
- The employee must have been employed for a period of six (6) months, if the employer employs more than 15 employers; or twelve (12) months, if the employer employs less than 15 employees;
- The employee must earn less than $145,400.00 per annum. However, an employee who earns more than this threshold may still apply for unfair dismissal if they are employed under a current modern Award; and
- The employee must have had a reasonable expectation that they will continue their employment with their employee.
An employee who was employed on a casual basis may still apply for unfair dismissal provided that they were employed on a regular and systematic basis.
Meaning of dismissal
A dismissal may either be:
- Termination of employment by the employer; or
- The employee resigns due to the conduct of the employer.
Meaning of harsh, unjust or unreasonable
An unfair dismissal must be either harsh, unjust or unreasonable.
- A dismissal where it is used as a disciplinary measure by the employer may be considered to be harsh if it is not proportionate to the conduct of the employee;
- A dismissal where the employee is not guilty of an alleged conduct is considered to be unjust; and
- A dismissal where there is no reasonable grounds for the dismissal of the employee is considered to be unreasonable.
Further, an employer must not dismiss an employee for conduct that is considered to be trivial, fickle, fanciful or prejudiced.
An employer may make an employee to be redundant, which is a reasonable ground for dismissal.
In order for the redundancy to be genuine:
- The employer no longer require the employee’s job to be performed by anyone due to operational changes in the workforce;
- An employer complies with any obligation with the modern Award which requires the employer to consult with the employee about the redundancy; and
- The employer is not able to redeploy the employee in another position within the business of the employer, or another position within a related entity of the employer.
Time limit for Unfair Dismissal Applications
Unfair dismissal application must be made within twenty-one (21) days from the date of dismissal.
However, a late application may be accepted if lodged after the twenty-one (21) days requirement provided that the employee has grounds for such delay.
In the event that unfair dismissal is established, the employee may:
- Be reinstated in his/her previous position; or
- Receive monetary compensation equivalent to twenty-six (26) weeks of wages.
How may this affect you
If you have been dismissed from your employment, or forced by your employer to resign, and you consider that there are no reasonable grounds for your dismissal, you may be eligible for reinstatement or compensation for Unfair Dismissal.
If you require assistance with an unfair dismissal application, contact the writer for consultation.